Analysis: President Obama's Uphill Defense of the NSA Surveillance

By Brian Resnick

June 18, 2013

President Obama is having a hard time defending the gushing leaks from the NSA's surveillance programs. It's not because he finds them indefensible; he seems emphatic that although he was worried about these programs as a senator and candidate, seeing them in action and seeing the oversights in place put him at ease.

But here's the problem with selling these programs to those who mistrust them: The average citizen can't go through that same process the president did. Despite the leaks, there's not much public transparency with the programs. Companies involved are ordered not to talk, proceedings in the Foreign Intelligence Surveillance Court are secret, and lawmakers have only just begun explaining to the press how they've overseen the process.

When first asked about the program by a reporter on June 7, Obama said he trusts in the oversight system in place, and gave assurances that the system involves all three branches of government. "In the abstract, you can complain about Big Brother and how this is a potential program run amok," he said, "but when you actually look at the details, then I think we've struck the right balance."

But the ordinary citizen can't look at the details.

In the same answer, the president said, "I welcome this debate. And I think it's healthy for our democracy."

But we wouldn't be having this debate if everyone followed the law and there was no leak.

So how do you defend a program whose broad details have been exposed but the finer points need to be kept in the dark? President Obama will appear with Charlie Rose on Monday night on PBS to take another stab at it. Based on a transcript of the interview, his defense follows more or less the same lines. "So, on this telephone program, you've got a federal court with independent federal judges overseeing the entire program," the president told Rose. "And you've got Congress overseeing the program, not just the intelligence committee and not just the judiciary committee — but all of Congress had available to it before the last reauthorization exactly how this program works."

For some, this answer will be enough. For others, it will never be because the argument is reduced to "if you trust the system, you should trust the NSA." And American trust of public institutions is as low as it has ever been.

Obama: So point No. 1, if you're a U.S. person, then NSA is not listening to your phone calls and it's not targeting your e-mails unless it's getting an individualized court order. That's the existing rule. There are two programs that were revealed by Mr. Snowden, allegedly, since there's a criminal investigation taking place, and they caused all the ruckus. Program No. 1, called the 2015 Program, what that does is it gets data from the service providers like Verizon in bulk, and basically you have call pairs. You have my telephone number connecting with your telephone number. There are no names. There is no content in that database. All it is is the number pairs, when those calls took place, how long they took place. So that database is sitting there. Now, if the NSA through some other sources, maybe through the FBI, maybe through a tip that went to the CIA, maybe through the NYPD. Get a number that where there's a reasonable, articulable suspicion that this might involve foreign terrorist activity related to al-Qaida and some other international terrorist actors. Then, what the NSA can do is it can query that database to see did any of the — did this number pop up? Did they make any other calls? And if they did, those calls will be spit out. A report will be produced. It will be turned over to the FBI. At no point is any content revealed because there's no content that —

Rose: So I hear you saying, I have no problem with what NSA has been doing.

Obama: Well, let me — let me finish, because I don't. So, what happens is that the FBI — if, in fact, it now wants to get content; if, in fact, it wants to start tapping that phone — it's got to go to the FISA court with probable cause and ask for a warrant.

Rose: But has FISA court turned down any request?

Obama: The — because — the — first of all, Charlie, the number of requests are surprisingly smal l… No. 1. No. 2, folks don't go with a query unless they've got a pretty good suspicion.

Rose: Should this be transparent in some way?

Obama: It is transparent. That's why we set up the FISA court…. The whole point of my concern, before I was president — because some people say, "Well, you know, Obama was this raving liberal before. Now he's, you know, Dick Cheney." Dick Cheney sometimes says, "Yeah, you know? He took it all lock, stock, and barrel." My concern has always been not that we shouldn't do intelligence gathering to prevent terrorism, but rather are we setting up a system of checks and balances? So, on this telephone program, you've got a federal court with independent federal judges overseeing the entire program. And you've got Congress overseeing the program, not just the intelligence committee and not just the judiciary committee — but all of Congress had available to it before the last reauthorization exactly how this program works.

Now, one last point I want to make, because what you'll hear is people say, "OK, we have no evidence that it has been abused so far." And they say, "Let's even grant that Obama's not abusing it, that all these processes — DOJ is examining it. It's being renewed periodically, et cetera — the very fact that there is all this data in bulk, it has the enormous potential for abuse," because they'll say, you know, "You can — when you start looking at metadata, even if you don't know the names, you can match it up, if there's a call to an oncologist, and there's a call to a lawyer, and — you can pair that up and figure out maybe this person's dying, and they're writing their will, and you can yield all this information." All of that is true. Except for the fact that for the government, under the program right now, to do that, it would be illegal. We would not be allowed to do that.